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Himachal Pradesh High Court · body

2018 DIGILAW 651 (HP)

Bittu v. State Of Himachal Pradesh

2018-04-16

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioner namely Bittu, who is behind bars since 5.3.2018, has approached this Court by way of instant proceedings, filed under Section 439 of Cr.PC, seeking therein his regular bail in case FIR No. 22/18 dated 1.3.2018, under Section 376 of IPC and Section 4 of POCSO Act, registered at PS Tissa, District Chamba, HP. 2. Sequel to order dated 2.4.2018 passed by this Court, ASI Sat Pal, I/o P.S. Tissa, District Chamba, HP, has come present in Court alongwith record of the case. Record perused and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the investigating agency. 3. Close scrutiny of the record/status report reveals that on 1.3.2018, complainant namely Brij Lal, made a complaint to the police, stating therein that on 2.2.2018, his wife namely Guddo, disclosed that on 25.2.2018, her daughter had gone at a distance of half a kilo meter for fetching water. When victim was in process of taking water from the source, allegedly bail petitioner came from the back side and taking undue advantage of innocence of victim, who at that relevant time was 10 years old, made an attempt to sexually assault her. Since victim raised hue and cry, her aunt namely Kamali, who at that relevant time, was collecting fuel woods in the Jungle, came to the spot and rescued the victim. Allegedly, bail petitioner fled from the spot after having seen above named person coming to the spot. Subsequently, victim disclosed to her Bua i.e. Kamali that the bail petitioner namely Bittu took her towards Jungle and after having gagged her mouth opened her Pajama. On the basis of aforesaid complaint, formal FIR as detailed herein above, came to be lodged against the bail petitioner and since 5.3.2018, bail petitioner is behind the bars. 4. Mr. K.B. Khajuria, Advocate, representing the bail petitioner while referring to the status report/record, vehemently contended that no case, if any, is made out against the bail petitioner under Section 376 and Section 4 of the POCSO Act, because bare perusal of the record itself suggests that nothing concrete has emerged against the bail petitioner. 4. Mr. K.B. Khajuria, Advocate, representing the bail petitioner while referring to the status report/record, vehemently contended that no case, if any, is made out against the bail petitioner under Section 376 and Section 4 of the POCSO Act, because bare perusal of the record itself suggests that nothing concrete has emerged against the bail petitioner. He further contended that if the history given by the doctor while medically examining the victim, is perused juxtaposing statement given by the victim under Section 164 CrPC, it creates doubt with regard to the correctness and genuineness of the story put forth by the prosecution. Mr. Khajuria, further contended that it is not understood that when police had taken victim to the doctor for medical examination, why father of the victim refused for the medical examination of the victim and as such, there is no evidence worth the name available on record suggestive of the fact that the bail petitioner made an attempt to sexually assault the victim. While inviting attention of this Court to the copy of FIR dated 1.12.2009, which is taken on record, Mr. Khajuria, contended that there is an old enmity between the families of the bail petitioner and the victim and in the past also, father of the complainant had lodged frivolous complaint under Sections 363 and 366 of IPC against the grandfather of the bail petitioner, however, fact remains that he was acquitted in that case by the competent court of law. Lastly, Mr. Khajuria, contended that bail petitioner is 19 years young boy, and in case he is kept behind bars for an indefinite period, no fruitful purpose would be served, rather great prejudice would be caused to the petitioner, who has a bright career ahead. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing prayer having been made by the learned counsel for the petitioner contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve to be enlarged on bail. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing prayer having been made by the learned counsel for the petitioner contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve to be enlarged on bail. He further contended that true it is that father of the victim refused to subject his daughter/victim to medical examination, but that may not be sufficient to conclude that bail petitioner has not committed offence, if any, punishable under Section 376 of IPC, rather there is ample evidence adduced on record by the prosecution suggestive of the fact that the bail petitioner taking undue advantage of innocence of the victim, who at that time was 10 years old, not only took her to the jungle against her wishes but also made an attempt to sexually assault her. While referring to the statements made by victim under Section 164 of Cr.PC as well as her Bua namely Kamali, under Section 161 of Cr.PC, learned Additional Advocate General, contended that it is clearly established on record that the bail petitioner, who is a 19 years old boy, made an attempt to commit offence punishable under Section 376 of IPC, but since Aunt of victim reached at spot after having heard cries, victim could be saved from the clutches of the bail petitioner. 6. Having heard learned counsel for the parties and gone through the record, this Court finds that though incident pertains to 25.2.2018, which came to the knowledge of mother of the victim on 27.2.2018, but fact remains that report, which was ultimately converted into an FIR, came to be lodged on 1.3.2018, i.e. after two days and there is no plausible explanation rendered on this count by father of the victim. He has simply stated that since family of the bail petitioner is influential, he apprehending threat to his life could not lodge report immediately after the alleged incident. 7. Leaving everything aside, this Court finds from the MLC placed on record by the Investigating Agency that on 1.3.2018, police had produced the victim along with her father before the doctor at Pt. Jawahar Lal Nehru Government Medical College, Hospital at Chamba, for medical examination, doctor attending upon the victim has categorically reported that father of the victim refused to subject his daughter/victim to any medical examination. Jawahar Lal Nehru Government Medical College, Hospital at Chamba, for medical examination, doctor attending upon the victim has categorically reported that father of the victim refused to subject his daughter/victim to any medical examination. Perusal of MLC further suggests that complainant also appended his signatures on the statement that he does not want his daughter to undergo any medical examination. No doubt in statement recorded under Section 164 Cr.PC., victim has alleged that bail petitioner made an attempt to sexually assault her, but if statement of her made under Section 164 of Cr.PC is read juxtaposing version put forth by her to the doctor, at the time of her medical examination, it certainly creates doubt with regard to the correctness of the story put forth by the prosecution. At this stage, this Court finds no evidence adduced on record by the prosecution suggestive of the fact that bail petitioner made an attempt to sexually assault the victim. 8. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of evidence, if any, collected on record by the prosecution, but at this stage, this Court having perused the record, especially report submitted by the doctor, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period and as such, he deserves to be enlarged on bail. Investigation in the case is almost complete save and except report of RFSL, which is yet to be received by the Investigating Agency. 9. Otherwise also, this Court cannot lose sight of the fact that guilt, if any, of the bail petitioner is yet to be proved in accordance with law and as such, his freedom cannot be ordered to be curtailed for an indefinite period. Recently, the Hon''ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon''ble Apex Court has further held that till the time guilt of the accused is not proved in accordance with law, he is deemed to be innocent. The relevant paras of the aforesaid judgment are reproduced as under: "2. Hon''ble Apex Court has further held that till the time guilt of the accused is not proved in accordance with law, he is deemed to be innocent. The relevant paras of the aforesaid judgment are reproduced as under: "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons." 10. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon''ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; wherein it has been held as under:- " The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; wherein it has been held as under:- " The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson." 11. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 12. Law with regard to grant of bail is now well settled. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 12. Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others , (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab , (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- "111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia''s case that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused''s likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 13. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another , (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (viii) reasonable apprehension of the witnesses being influenced; and (ix) danger, of course, of justice being thwarted by grant of bail. 14. 14. In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00, 000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. 15. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of. Copy dasti.